Bill C-59 (Historical)

National Security Act, 2017

An Act respecting national security matters

Part 1 enacts the National Security and Intelligence Review Agency Act, which establishes the National Security and Intelligence Review Agency and sets out its composition, mandate and powers. It repeals the provisions of the Canadian Security Intelligence Service Act establishing the Security Intelligence Review Committee and amends that Act and other Acts in order to transfer certain powers, duties and functions to the new Agency. It also makes related and consequential amendments to other Acts.
Part 1.‍1 enacts the Avoiding Complicity in Mistreatment by Foreign Entities Act to authorize the issuance of directions respecting the disclosure of and request for information that would result in a substantial risk of mistreatment of an individual by a foreign entity and the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity.
Part 2 enacts the Intelligence Commissioner Act, which provides that the duties and functions of the Intelligence Commissioner are to review the conclusions on the basis of which certain authorizations are issued or amended, and determinations are made, under the Communications Security Establishment Act and the Canadian Security Intelligence Service Act and to approve those authorizations, amendments and determinations if those conclusions are reasonable. This Part also abolishes the position of the Commissioner of the Communications Security Establishment, provides for that Commissioner to become the Intelligence Commissioner, transfers the employees of the former Commissioner to the office of the new Commissioner and makes related and consequential amendments to other Acts.
Part 3 enacts the Communications Security Establishment Act, which establishes the Communications Security Establishment and, among other things, sets out the Establishment’s mandate as well as the regime for authorizing its activities. It also amends the National Defence Act and makes consequential amendments to other Acts.
Part 4 amends the Canadian Security Intelligence Service Act to
(a) add a preamble to that Act and provide a mechanism to enhance the accountability of the Canadian Security Intelligence Service;
(b) add new limits on the exercise of the Service’s power to reduce threats to the security of Canada including, in particular, by setting out a list of measures that may be authorized by the Federal Court;
(c) provide a justification, subject to certain limitations, for the commission of acts or omissions that would otherwise constitute offences;
(d) exempt employees of the Service and persons acting under their direction from liability for offences related to acts committed for the sole purpose of establishing or maintaining a covert identity;
(e) create a regime for the Service to collect, retain, query and exploit datasets in the course of performing its duties and functions;
(f) make amendments to the warrant regime that are related to datasets; and
(g) implement measures for the management of datasets.
Part 5 amends the Security of Canada Information Sharing Act to, among other things,
(a) emphasize that the Act addresses only the disclosure of information and not its collection or use;
(b) clarify the definition of “activity that undermines the security of Canada”;
(c) clarify that advocacy, protest, dissent and artistic expression are not activities that undermine the security of Canada unless they are carried on in conjunction with an activity that undermines the security of Canada;
(d) provide that a disclosure of information is authorized only if the disclosure will contribute to the carrying out by the recipient institution of its national security responsibilities and will not affect any person’s privacy interest more than reasonably necessary;
(e) require that information disclosed be accompanied by information about the accuracy of the disclosed information and the reliability of the manner in which it was obtained; and
(f) require that records be prepared and kept in respect of every disclosure of information and that every year a copy of every record prepared in the preceding year be provided to the National Security and Intelligence Review Agency.
Part 6 amends the Secure Air Travel Act to authorize the Minister of Public Safety and Emergency Preparedness to collect from air carriers and operators of aviation reservation systems, for the purpose of identifying listed persons, information about any individuals who are on board or expected to be on board an aircraft for any flight prescribed by regulation, and to exempt an air carrier from providing that information, or from the application of any provision of the regulations, in certain circumstances. It amends the Act to authorize that Minister to collect personal information from individuals for the purpose of issuing a unique identifier to them to assist with pre-flight verification of their identity. It also reverses the rule in relation to a deemed decision on an application for administrative recourse. Finally, it amends the Act to provide for certain other measures related to the collection, disclosure and destruction of information.
Part 7 amends the Criminal Code to, among other things,
(a) make certain procedural modifications to the terrorist listing regime under section 83.‍05, such as providing for a staggered ministerial review of listed entities and granting the Minister of Public Safety and Emergency Preparedness the authority to amend the names, including aliases, of listed entities;
(b) change the offence of advocating or promoting terrorism offences in general, in section 83.‍21, to one of counselling the commission of a terrorism offence, and make corresponding changes to the definition of terrorist propaganda;
(c) raise one of the thresholds for imposing a recognizance with conditions under section 83.‍3, and amend when that section is to be reviewed and, unless extended by Parliament, to cease to have effect;
(d) repeal sections 83.‍28 and 83.‍29 relating to an investigative hearing into a terrorism offence and repeal subsections 83.‍31(1) and (1.‍1), which require annual reports on such hearings;
(e) require the Attorney General of Canada to publish a report each year setting out the number of terrorism recognizances entered into under section 810.‍011 in the previous year; and
(f) authorize a court, in proceedings for recognizances under any of sections 83 and 810 to 810.‍2, to make orders for the protection of witnesses.
Part 8 amends the Youth Criminal Justice Act to, among other things, ensure that the protections that are afforded to young persons apply in respect of proceedings in relation to recognizance orders, including those related to terrorism, and give employees of a department or agency of the Government of Canada access to youth records, for the purpose of administering the Canadian Passport Order.
Part 9 requires that a comprehensive review of the provisions and operation of this enactment take place during the fourth year after section 168 of this enactment comes into force. If that section 168 and section 34 of Bill C-22, introduced in the 1st session of the 42nd Parliament and entitled the National Security and Intelligence Committee of Parliamentarians Act, come into force within one year of each other, the reviews required by those sections are to take place at the same time and are to be undertaken by the same committee or committees.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much.

On one hand, I wanted to ask about rights, but on the other hand, I also want to ask about security, specifically, a question about cybersecurity.

We could have a situation, as a result of even one attack, where our banking and electricity systems are undermined. I've given you maybe one minute to answer this, but in what ways does Bill C-59 provide a more robust framework to prevent against such attacks and protect Canadians?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

The most prominent issue that emerged from Bill C-51 was the original wording of what became section 12.1 of the CSIS Act, which implied, by the way the section was structured, that CSIS could go to a court and get the authority of the court to violate the charter. Every legal scholar I've ever heard opine on this topic has said that is a legal nullity. An ordinary piece of legislation such as the CSIS Act cannot override the charter. The charter is paramount. However, the language in the way section 12.1 was structured left the impression that you could go to the court and get authority to violate the charter.

In the language change that we have put into Bill C-59, first of all, we have specified a list of disruption activities that CSIS may undertake with the proper court authorization, but when they go to the court to ask for authority, the ruling they're asking for from the court is not that it violate the charter, but that it fits within the charter, that in fact it is consistent with the Canadian Charter of Rights and Freedoms, including clause 1 of the charter.

That's the difference between the structure of the old section and how we've tried to make it clear that the charter prevails.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much, Chair, and thank you, Minister and officials, for being here today.

Minister, at the outset you said that the Charter of Rights is paramount here. I wonder if you could speak to the place of the charter in all of this, in Bill C-59 and where the charter factors in.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Minister, you say the number is 60, when in reality we don't have a finite figure. In fact, with the mass migration of people seeking asylum across the U.S.-Canadian border, those are the people who wanted to be caught. The border enforcement agencies have been overwhelmed with those. What about the people who crossed into Canada who didn't want to be seen? We don't know that there are only 60 people who were fighting with ISIL.

In light of the recent terrorist attack domestically that Mr. MacKenzie referred to, there are terrorist attacks in the U.K. and the EU in addition to Canada that included the acquisition and use of objects available to citizens, such as vehicles, chemicals, and so on. Has the government reviewed the provisions of Bill C-59 to ensure that it permits appropriate emergency disruptive activities, including without warrant, where required?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

It's a very serious issue, Mr. Spengemann. You really have touched on the two elements we're working on. Through the collection of new provisions that are here in Bill C-59 we will give CSIS and the RCMP and our other agencies the ability and the tools to be as well informed as humanly possible about these activities and to be able to function with clarity within the law and within the Constitution to do what they need to do to counter those threats. Specifically where offences arise in relation to young people, the Youth Criminal Justice Act applies, so that is the process by which young offenders will be managed under this law.

The other side of it is prevention, and all of the countries in the G20, and probably many others around the world, are turning their attention more and more to this question. It has been discussed among the Five Eyes allies. It's been discussed among the G7 countries as well as the G20.

How can we find the ways and share our expertise internationally with all countries that share this concern? How can we find the ways to identify vulnerable people early enough to have a decent opportunity to intervene effectively in that downward spiral of terrorist influence to get them out of that pattern?

Obviously intervention and counter-radicalization techniques will not work in every circumstance. That's why we need a broad range of tools to deal with terrorist threats, but where prevention is possible, we need to develop the expertise to actually do it. That is the reason we created the new Canada centre for community engagement and prevention of violence, so we would have a national office that could coordinate the activities that are going along at the local and municipal and academic levels across the country, put some more resources behind those, and make sure we are sharing the very best ideas and information so that if we can prevent a tragedy, we actually have the tools to do it.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you very much, Mr. Chair. I'd like to welcome Minister Goodale to the committee with his team and extend my congratulations to Mr. Rigby and welcome him in his new role.

I'd like to also echo Mr. Motz's appreciation for bringing this bill to us before second reading.

Minister Goodale, my question falls squarely into the overarching framework that we need both good security and to protect our charter rights. It's about Canadian youth and their vulnerability to terrorism. In particular, we have terrorist networks around the world like Abu Sayyaf, in the Philippines; al Shabaab in Somalia; ISIS in Syria, and the Levant; and future terrorist networks, potentially or likely, that will prey on youth in various countries. These are children, really, according to my reading, who range between the ages of 14 and 19 or who are into their early twenties.

Clause 159 of the bill brings the Youth Criminal Justice Act into connection with Bill C-59, applies it to Bill C-59, including the principle that detention is not a substitute for social measures and also that preventative detention, as provided for in section 83.3 of the Criminal Code, falls into that same framework. It's not a substitute.

I wonder if you could comment on your vision of how the bill relates to young offenders, vulnerable youth, essentially the pre-commission of any terrorist offences or recruitment by networks, and then also your broader vision about how we can do better in terms of preventing terrorism in the first place by making sure these networks do not prey on Canadian youth and children.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

Thanks to the panel for being here.

With all due respect, Minister, Bill C-51 was passed a few years ago, and I think that it received widespread support in the House. I believe you voted in favour of it. I think that it did make some changes that at the time were appropriate. Now in review three years later, we're looking at essentially a review. This is not a total rewrite, I think you would agree, of the original bill, but it does add some ingredients that are probably important.

When you mention the law expressly prohibiting protest and advocacy and so on, will the changes in the new bill result in charges that were not allowed for in Bill C-51? Have we enhanced the probabilities of prosecution in Bill C-59 over Bill C-51?

[David Vigneault]

All information that the service gathers must be absolutely linked to our mandate, which is to monitor threats to the security of Canada. From the outset, the information we collect must be related to a threat to the security of Canada.

Bill C-59 sets out categories of information that are determined by the Minister. He tells me, as director, which categories of information we have the right to use. The men and women of the service will go and gather that information in an organized fashion. If the information is part of a Canadian dataset, the Intelligence Commissioner will have to assess the minister's decision.

With Canadian information, the Federal Court will have to determine whether we can use it and keep it. The way in which we use that information will be reviewed by the new National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians.

The way in which the categories are determined by the Minister, the way in which we will use Canadian information, the role that the Federal Court and the Intelligence Commissioner will play, and the fact that any subsequent use of the information will be reviewed by oversight committees, all this will allow us to use information that is absolutely essential in confronting 21st century threats. Having been written 30 years ago, the law was showing its age, as Justice Noël said.

These measures will allow us, in 2017, to confront the threats appropriately, while being accountable for the protection of information on third parties, as you mentioned.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Justice Noël's judgment is very interesting. Obviously he was concerned about certain procedures and practices and he laid out his instruction as to how those practices were to be adjusted. Bill C-59 captures Justice Noël's advice and judgment for a procedure going forward dealing with the management of data and datasets. That is all articulated in a very elaborate set of rules that will apply.

However, Justice Noël also said this. I don't have the exact quote in front of me, but he said to bear in mind that the CSIS Act was written in 1984. Think back to 1984. If you had a cellphone, it was as big as a breadbox. The fax machine was cutting-edge technology. A lot has changed, and as you mentioned, Monsieur Picard, he said explicitly that maybe all of this needs to be revisited in light of all the technological change that has taken place since 1984.

There have been recommendations from the Security Intelligence Review Committee. There have been judgements of the courts. There have been findings by judicial inquiries into a whole variety of circumstances in terms of the collection, the analysis, and the utilization of certain datasets, and what should be permitted and what shouldn't be permitted. We've taken all of that on board and it is now embodied in the rules laid out in Bill C-59.

There was another dimension of Justice Noël's judgment where he suggested in some pretty blunt language that there needed to be greater communication and candour between the agency and the court.

David Vigneault is the director of CSIS. I would just ask him to comment on that issue with respect to candour.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

You indicated that Bill C-59 was an attempt to clear up some ambiguity in language. In some of our preliminary conversations as a committee, we've already identified some ambiguity and how the language might have been used. We definitely want to make sure we're consistent in that, and we may be proposing some adjustments to, for example, “sharing” as opposed to “disclosing”, “reasonable and probable grounds” as opposed to “is likely to”, and those sorts of things. We want to be consistent with how we apply it.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

We'll see. I remain optimistic.

One of the things that did strike comments from many people who study this was the appreciation that the protection of national security and the whole idea of national security is a non-partisan team sport and that we all need to be on the same page with how that plays out.

What's also unique about Bill C-59 is that it's more prescriptive than what our allies have. We have a lot of the regulations that could be regulations inside this bill.

You mentioned before, sir, that one of the things you want to see is the ability to ensure national security is kept nimble and able to keep pace with changing threats. If everything is prescribed in a bill and we only have a five-year review cycle, we all know that sometimes bills take a long time to change. I wonder if we would be in a better spot to take some of the good things we see in Bill C-59 and move them into the regulation scheme, so if we have to change things and be nimble to changing threats, we can make those adjustments in a more efficient fashion.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Yes.

Insofar as CBSA deals with national security and intelligence matters, it is covered by Bill C-59, just as is CSIS or CSE or the RCMP, or any other security intelligence or police organization at the federal level. Their activities in relation to national security and intelligence are covered by Bill C-59 and the new national security and intelligence review agency.

What's still missing with respect to CBSA is an individual complaints mechanism for officer conduct unrelated to national security. We will be bringing forward a proposal to deal with that. That is one gap that remains in the architecture, and it will be subject to separate legislation.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I only have one minute, so perhaps this becomes a very short answer.

Another issue is CBSA oversight, which is a question that comes up in my community. People ask about it.

There isn't any independent oversight under our current regime. Under the Bill C-59 regime, is there CBSA oversight?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

It's because they do come together as a comprehensive, coherent package. Again, that is a product of the consultation. Never before has a government gone out to Canadians to say, “Have your say about national security. Tell us what works. Tell us what doesn't work. Raise the issues you want to raise.” We had a discussion paper to stimulate the conversation, but there was nothing off limits for Canadians to raise. The issues they raised, some more strenuously than others, and some in a larger volume than others, are the issues that are included in Bill C-59. They are all interconnected.

To give you one example, some people have asked about the CSE provisions here and about whether it's directly relevant. Well, CSE was one of our campaign commitments. CSE is a topic that was raised during the consultation. One of the new innovations that we're bringing in the legislation is the creation of the intelligence commissioner. The intelligence commissioner deals with CSE issues, with CSIS issues, and with other issues, so it makes sense to do them all together as a package.

A great many cross-cutting issues like that lead one to conclude that you need to debate this package as a comprehensive package rather than in bits and pieces, where the continuity would not be obvious.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Yes. I can certainly get the list from our platform. They include making sure that civil protest was no in any way compromised; making sure that the Charter of Rights and Freedoms was paramount, particularly with respect to the threat reduction measures; making sure that there would be a review of the legislation after a certain period of time, with the legislation providing for a five-year review when all the security framework of Canada will be re-examined; and clarifying a number of definitions, like the one about terrorist propaganda that I referred to. There are also the no-fly corrections that we undertook.

We also said that we would create the committee of parliamentarians. That's done. We said that we would create the office for dealing with counter-radicalization. That's done. With the passage of Bill C-59, all of the specific elements that we referred to in the platform will be accomplished.